East African Court Of Justice Research Articles

East African Community (eac) – Inspiring Constitutional Change by Promoting Constitutionalism?

Abstract The East African Community (eac) is considered to be one of the most successful international organizations in Africa. Due to the founding Treaty’s commitment to democracy, human rights, rule of law and to achieving of a political federation, one may think that the eac has a potential to promote the ideas of transformative African constitutionalism in the participating states. However, the history of regional integration in East Africa, the eac’s current institutional set-up and its substantive law tell a different story. The organization’s elitist legacy and an integration model depending on the goodwill of the heads of state do not fully deliver on the principles which the Treaty pronounces. It is the pro-active stance taken by the East African Court of Justice (eacj) and to some extent also by the East African Legislative Assembly (eala) that keeps the constitutionalism and the hopes of East Africans alive.

The East African Court of Justice: Weaving Jurisprudential Pathways, 2012–20

A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.

Coronavirus Counter-Measures, The Treaty for the Establishment of the East African Community and Domestic Legal Requirements

Abstract This article examines the coronavirus counter-measures adopted by East African states from a legal perspective. The focus is whether the adopted measures infringe on the provisions of the Treaty for the Establishment of the East African Community (EAC) and domestic legislations, including the countries’ constitutional provisions. The legal recourse for East African citizens in instances where domestic remedies have failed will be examined in light of the role of the judicial organ of the East African Community, the East African Court of Justice (EACJ). An examination will be made on protection of human rights under the EAC Treaty and the jurisdiction of the EACJ in adjudicating on allegations of human rights violation. This contribution will proceed to debate on the existing relationship between international law and domestic laws; whether international law is superior to domestic law and whether international bodies can entertain a complaint by an individual or an institution on violation of human rights where redress has not been exhaustively sought through domestic legal systems.

The Unity of Community Legal Order: Juxtaposing a Relationship between the East African Court of Justice and National Courts

The Unity of Community Legal Order: Juxtaposing a Relationship between the East African Court of Justice and National Courts

Push and pull

The Treaty for the Establishment of the East African Community (the EAC Treaty) was signed on 30 November 1999 between the Republics of Kenya, Uganda and the United Republic of Tanzania. Burundi and Rwanda acceded to the Treaty in 2007 and South Sudan in 2016. The East African Community (EAC) is the fastest growing Regional Economic Community (REC) in Africa, with a comparatively well-functioning Customs Union, a partly functioning Common Market, a fast-approaching Monetary Union, and an ultimate destination of a Political Federation. The EAC Treaty is an international treaty and its international status has been canvassed both by the East African Court of Justice (EACJ) – the EAC’s judicial organ – and the national courts of Partner States. As might be expected, the former has been progressive and supranationalist in its interpretation of the Treaty while the latter have dabbled in a ‘push and pull’ approach attempting, on the one hand, to limit the application of the Treaty in order to protect constitutional supremacy while fully accepting, on the other hand, its application in regard to ordinary national legislation. Amidst this discourse, an appreciation of the generally binding nature of ratified international treaties has emerged among national courts so that EAC law (herein referred to as Community law) – itself a manifestation of an international Treaty – could be a major beneficiary.

An Appraisal of the East African Court of Justice

An Appraisal of the East African Court of Justice

Media Council of Tanzania and Others v. Attorney General of the United Republic of Tanzania (East Afr. Ct. J.)

On March 28, 2019, the First Instance Division of the East African Court of Justice (the EACJ or Court) issued a judgment in Media Council of Tanzania and Others v. Attorney General of the United Republic of Tanzania, Reference No. 2 of 2017. The Court held that several provisions of United Republic of Tanzania's Media Services Act 2016 (the Act) violated the freedom of expression at the heart of the fundamental and operational principles enshrined in Articles 6(d) and 7(2) of the Treaty Establishing the East African Community (the EAC Treaty).

Implementation of East African Community Law by Partner States: A review of relevant laws

On 30 November 1999, the Heads of State of the East African Community met in Arusha, Tanzania, and concluded the Treaty for the establishment of the East African Community. The Treaty came into force on 7 July 2000. The founding members of this Community were Kenya, Uganda, and Tanzania. Rwanda and Burundi acceded to the Treaty in 2007 while South Sudan acceded to the Treaty in 2016. While the treaty has the potential of promoting unity among the partner states, this is threatened by the fact that it fails to address how Partner States should implement it. A critical analysis of the jurisprudence from the East African Court of Justice and those of the Court of Justice of the European Union shows that community law is an autonomous legal order in which Partner States have accepted to cede part of their sovereignty to the community. Therefore, community law, unlike international law which houses it, has primacy over the municipal law of the Partner States, notwithstanding their constitutional philosophies. This paper seeks to examine how East African Community Law is implemented by partner states by reviewing the EAC Treaty, the decisions of the East African Court of Justice and the municipal laws of partner states. Decisions of the Court of Justice of the European Union on the implementation of European Union Law by Partner States of the European Union are discussed as lessons to be learnt in the East African Community.

Human Rights, the Rule of Law and the East African Court of Justice: Lawyers and the Emergence of a Weak Regional Field

This article represents a first systematic attempt to trace the trajectory that follows the professionalization of a group of East African lawyers committed to the cause of a regional International Court (IC) inspired by the rule of law and human rights. It demonstrates how a group of lawyers participated in the struggle to define law and to construct the East African court of justice (EACJ) and build the field of human rights. Lawyers who participated in the creation of the EACJ became “experts” in regional law. This expertise was legitimised not only by the political and social capital deriving from their participation in the drafting of the EAC Treaty, as representatives of states or civil society groups, but also by the capital of knowledge and technical skill accumulated in the course of bringing forth and litigating cases in both the national and transnational spaces. Upon entering the regional IC, as either judges or litigators, these agents became interpreters of the EAC Treaty inspired by the respect for the rule of law and human rights. The article reports on data from field research in East Africa. This paper starts with a discussion of the role of lawyers and civil society groups in the formation of the EACJ before analysing efforts to extend the jurisdiction of the EACJ to include human rights. It then examines the EACJ Judges' off-the-bench efforts at judicial empowerment before looking at how lawyers introduced their litigation experience from the national level to the EACJ. Finally, the paper discusses the rule of law and human rights-related case law of the Court.

The Place of International Arbitration in East Africa: A Case Study of the Effectiveness of the East African Court of Justice as an International Arbitral Tribunal

This research reflects on the functioning of the East African Court of Justice (EACJ) as an international arbitral. The motivation behind this research paper is to evaluate the effectiveness of the East African Court of Justice in resolving disputes through arbitration. In doing so, the research will do an analysis on the history behind the establishment of the court, the court’s jurisdiction, the legal framework guiding the court in resolving arbitration disputes, the progress the court has had in resolving disputes through arbitration, the challenges facing the court and suggest the way forward. The research will further analyze the dynamics of arbitration disputes in the twenty-first century, and the impact of the national laws of the states on the court’s effectiveness. It is worth noting that the research paper focuses on East African Community with six (6) member states who so far have established legislative and institutional mechanisms in the area of domestic and international arbitration. These are: Kenya, Uganda, Tanzania, Rwanda, Burundi, and South Sudan. Given its relevance to the East African Community, this may therefore be the time to audit the East African Court of Justice's functioning as an international arbitral tribunal and reflect on whether it is moving in the right direction. The hypothesis of this research is that the East African Court of Justice has been struggling as an international arbitral tribunal. In tracing its history so far it is easy to discern the important role East African Court of Justice should play in promoting international arbitration in East African Community.

Human Rights in the East African Community

In this paper, I explore the pertinent question of human rights in the East African Community. There have been debates as to whether the East African Court of Justice has a human rights jurisdiction and if so what international instruments should it apply?. There have been suggestions within the corridors of power to have the community develop its own human rights Protocol to cater for human rights. This debate has not yet been concluded partly due to the fact that the court has not been clothed with an express human rights jurisdiction though the court has entertained human rights matters. I make a small contribution to this very pertinent discussion. I hope you find this useful.

Input of The EACJ In Developing The Jurisprudence on Freedom of The Press in East Africa

The Parliament of the United Republic of Tanzania enacted the Media Services Act on 5 November 2016 and the President assented to it two weeks later. The Act was enacted largely for the purposes of promoting professionalism in the media industry, regulating media services in the country, establishing the Journalist Accreditation Board and establishing the Media Services Council. Media stakeholders and Civil Society Organisations criticized the Act, arguing that it was meant to muzzle media freedom in the country contrary to the prevailing human rights standards. In January 2017 these organisations filed a case at the East African Court of Justice (EACJ) challenging the said law. After hearing both parties, i.e., the Applicants and the State Attorneys who represented the Attorney General of Tanzania, on 28 March 2019 the First Instance Division of the EACJ made a judgement to the effect that the Tanzania Media Services Act unjustifiably infringe the freedom of expression which is one of the human rights standards Partner States to the East African Community are required to respect and protect. This article provides critical analysis of the decision. Key words: Freedom of expression, press freedom, criminal defamation, sedition, proportionality test.

Sociology of International Adjudication

This article presents the ways in which classical sociological theories can help unpack how international courts operate and how their adjudicative practices are in part steered by social and political structures. The main focus is on classic sociological theories, respectively Weberian interpetivist, Durkheimian functionalist, and Marxist and post-Marxist critical perspectives. In order to demonstrate how these sociological perspectives are relevant for the study of international adjudication, the article applies their tenets to a different set of international courts, including the European Court of Human Rights (ECtHR), the Inter-American Court of Human rights (IACtHR), the Caribbean Court of Justice (CCJ), the Central American Court of Justice (CACJ), the Court of Justice of the European Union (CJEU) and the East African Court of Justice (EACJ).

The East African Court of Justice, Enforcement of Foreign Arbitration Awards and the East African Community Integration Process

AbstractThis article discusses the legal regimes for enforcing foreign arbitral awards within the East African Community (EAC). It focuses specifically on the enforcement of awards from partner states as well as from the East African Court of Justice (EACJ), which, although a supranational court, has jurisdiction to accept parties’ designation to act as an arbitral tribunal. The EAC has not yet developed a supranational community law based regime for enforcing foreign arbitral awards. The current dominant regime for enforcing such awards is the New York Convention. The article examines how the convention has been applied in the partner states and discusses aspects of the existing jurisprudence that demand reconsideration. It examines the suitability of applying the convention regime to awards from the EACJ, and the case for harmonizing the legal regimes for enforcing foreign arbitral awards within the EAC.

The Role of the East African Court of Justice in the Advancement of Human Rights: Reflections on the Creation and Practice of the Court

International courts (ICs) like any other institution evolve over time. They constantly evolve responding to socio-political dynamics. The East African Court of Justice (EACJ) has evolved to deal with the rule of law and human rights-related cases. Although the jurisprudence of the EACJ has been studied, the creation of the court and the origin of the provisions in which the court relies to decide human rights-related matters has largely been unexplored. This article presents the first empirical analysis of the creation of the EACJ and the processes by which the provisions of the rule of law and human rights entered the Treaty for the establishment of the East African Community (EAC). The article also examines the practice of the EACJ to show its evolution over time.

An Appraisal of the Functioning and Effectiveness of the East African Court of Justice

This contribution reflects on the functioning of the East African Court of Justice (EACJ) and judges its effectiveness by assessing the Court's role of ensuring adherence to, the application of and compliance with the East African Community (EAC) Treaty. The EACJ became operational on 30 November 2001, following its inauguration after the swearing in of its judges and the Registrar. During this initial stage of the Court's existence there were indications that the EACJ was failing to stamp its authority on the activities of the Community. The main reason for this failure is the existence of gaps in the EAC Treaty, which prevent the EACJ from effectively discharging its functions. In addition, as shown in this article, the EACJ has been delivering judgements on the grounds of doubtful authority which has gradually diminished the Court's legitimacy. Given its relevance to the EAC, this may therefore be the time to audit the EACJ's functioning and reflect on whether it is moving in the right direction. The hypothesis of this article is that the EACJ has been struggling to establish its authority in the region, mostly in the areas of human rights, the rule of law and good governance. In tracing its history so far it is easy to discern its strategic attempts at judicial law-making to arrogate to itself the role of the protector of human rights. While it is acknowledged that the EACJ is increasingly receiving cases of a divergent nature, most of these cases have had little influence on the integration project or are outside the scope of its mandate.
 

East African Court of Justice and Human Rights Jurisdiction: Drawing the Line

Human rights in Africa have gradually gained a place of recognition few could have foreseen only a decade ago. With the promotion and protection of human rights entrenched deep in the African Charter on Human and Peoples’ Rights, African states have a duty to uphold this principle in the larger goal of regional economic integration. The East African Court of Justice (EACJ), a regional court, has thus assumed the role of a watchdog in breathing life into these provisions, safeguarding the rule of law and ensuring everyone plays by the rules. It is unfortunate that these watchdogs can then lack the most important tool in steering the ship – jurisdiction. This paper, through a detailed analysis of literature review, tackles the pertinent question of whether the court has jurisdiction to handle human rights cases and arrives at the conclusion that an express mandate is lacking, but there is a somewhat implied mandate. Nonetheless, a clear articulation of the EACJ’s mandate is necessary to enable it to address issues effectively and efficiently.

Patterns of avoidance: political questions before international courts

AbstractInternational courts (ICs) have found themselves dealing with issues that are ‘political’ in nature. This paper discusses the techniques of avoidance ICs have developed to navigate such highly political or sensitive issues. The first part discusses some of the key rationales for avoidance. Drawing on the discussion of the political question doctrine in US constitutional law, it shows how ICs may justify avoidance on both principled and pragmatic grounds. It then discusses the different types of avoidance strategies employed by ICs, based on examples from the Court of Justice of the European Union, the International Court of Justice and the East African Court of Justice. ICs are rarely upfront about avoidance strategies. Rather, ICs tend to avoid cases in a more subtle fashion, relying on procedural rules to exclude a case, or by resolving the dispute in a way that avoids the most politically sensitive questions and controversies.

Subregional courts in Africa: Litigating the hybrid right to free movement of persons

Human rights attorneys and civil society groups in Africa have recently focused their advocacy efforts on subregional courts associated with economic integration communities in East, West and Southern Africa. The East African Court of Justice, the Court of Justice of the Economic Community of West African States, and the Tribunal of the Southern African Development Community have received few suits challenging trade restrictions and other barriers to subregional integration. Instead, and surprisingly, the courts’ dockets are dominated by complaints alleging violations of international human rights law. This article offers the first analysis of EACJ, ECOWAS Court, and SADC Tribunal decisions concerning the free movement of persons. Freedom of movement is a hybrid legal right. It is protected in the African Charter on Human and Peoples’ Rights and in other human rights instruments, but it is also a central pillar of all regional integration systems. Free movement case law thus offers a revealing lens through which to examine how African subregional courts decide which litigants have access to justice, interpret international legal norms, and fashion the remedies awarded to successful complainants.

The Direct Applicability of SADC Community Law in South Africa and Zimbabwe: A Call for Supranationality and the Uniform Application of SADC Community Law

The Southern African Development Community Tribunal (SADC Tribunal) became operational in 1992 and delivered several judgments against Zimbabwe. Some of those decisions are yet to be enforced. The attempt to enforce them contributed to the demise of the SADC Tribunal. The tension between community law and domestic law, international law and national law, and community law and international law is as old as the hills. The monist and dualist theories of international law assist in attempting to clarify the nature of the relationship between international law and municipal law. However, there is no guidance when it comes to community law and national law. This paper will explore on how SADC Community law can be applied uniformly by South Africa and Zimbabwe including all other SADC member states. This will be done through decided cases with specific reference to South Africa and Zimbabwe. In order to learn best practices from other jurisdictions, the paper will to the extent relevant, make reference to the East African Court of Justice, the European Union (EU) and the European Court of Justice (ECJ). The discourse will conclude by making a proposal for the adoption of a revised Protocol on the SADC Tribunal that will assist in clarifying the nature of the relationship between SADC Community law and national laws of SADC member states.